Emory Bankruptcy Developments Journal

Whether to Grant an Individual Chapter 11 Debtor an “Early” Discharge

Alan M. Ahart, Mark S. Wallace | 31 Emory Bankr. Dev. J. 277 (2015)

This Article provides a framework for determining whether to grant an “early” discharge to an individual chapter 11 debtor. An early discharge permits such a debtor to receive a discharge before making all payments under the confirmed plan. The Article analyzes the circumstances that warrant issuing such an early discharge, and what information ought to be included in the disclosure statement, plan, and notice of confirmation hearing. The Article concludes that an individual chapter 11 debtor may obtain a early discharge: (1) upon confirmation of a reorganization plan where the debtor has paid unsecured creditors before confirmation, or where necessary to keep important customers or to obtain financing to pay unsecured creditors, or (2) after plan confirmation but before plan payments are finished if the unsecured creditors have received the required distribution and the debtor no longer has sufficient income to meet living expenses and to make the required payments.

Amending the Flaws in the Safe Harbors of the Bankruptcy Code: Guarding Against Systemic Risk in the Financial Markets and Adding Stability to the System

Peter Marchetti | 31 Emory Bankr. Dev. J. 305 (2015)

Certain provisions of derivative trading contracts get special exemptions under the Bankruptcy Code, referred to as “Safe Harbors,” to prevent systemic risk. The Safe Harbors seek to accomplish this goal by permitting a party to a derivative trading contract to quickly terminate and liquidate its positions. The precise parameters of the Safe Harbors remain unclear. This lack of clarity adversely affects the ability of market participants to accurately perform credit risk analyses with respect to their derivative trading counterparties and may adversely impact the ability of market participants to prepare Living Wills, as required by the Dodd-Frank Act. Similarly, it adversely affects the ability of a party to reorganize under the Bankruptcy Code. This Article argues that Congress should amend the Safe Harbors to address these issues to mitigate risk.

“I Pronounce You Man and Man. You May Now File Jointly for Bankruptcy”: DOMA’s Unconstitutionality and Its Effect on Joint Bankruptcy Filings for Same-Sex Couples

Michael Tomback | 31 Emory Bankr. Dev. J. 375 (2015)

Windsor v. United States marked the erosion of the Defense of Marriage Act of 1996. Post-Windsor, the operative definition sections of that Act—defining “marriage” and “spouse” for “any Act of Congress”—no longer control. The meaning of marriage and spouse under federal law and, specifically, the Bankruptcy Code is now unclear. This Article argues that lawfully married same-sex couples should be allowed to file for bankruptcy jointly under 11 U.S.C. § 302 in all bankruptcy courts, even if the couple files jointly in a state that does not recognize their union. Under federalism principles, the Bankruptcy Code should apply the definitions of marriage and spouse from the state of celebration to provide same-sex couples equal access to the federal bankruptcy system. This Article proposes an interpretive framework that permits same-sex couples to file for bankruptcy jointly in any state while leaving state-level restrictions on marriages between same-sex couples untouched.